Public law manual unit 1 sub-unit 1

Question 1

What is a constitution?

Answer 1

Used in many types of organisations to establish the fundamental rules + principles by which the organisation is governed.

Question 2

What is a political constitution?

Answer 2

A political constitution deals with the organisation and legal order of the state, giving effect to values which the society regards as important.

Defines a state’s fundamental political principles, establishes the framework of the government (powers + duties of executive, legislature and judiciary), and guarantees certain rights + freedoms to the citizens (eg. right to free speech/right to vote etc) .
(key political ideas or doctrines on which the state is based)

Question 3

How do you classify a written constitution?

Answer 3

• A state with its constitution set out in a single document.
• The document will contain the fundamental laws of the constitution + define the powers of the different branches of state.
• May also contain a Bill of Rights setting out the fundamental civil liberties to be enjoyed by citizens of the state.

Question 4

How do you classify an unwritten constitution?

Answer 4

• A state will not have its constitution set out in a single document.
• Rather the constitution will be made up of a number of different sources, such as statute + case law.

Question 5

How do you classify a Republican constitution?

Answer 5

-A state will usually have a democratically-elected president as its head of state.

Question 6

How do you classify a Monarchical constitution?

Answer 6

-A state will have an unelected monarch as head of state (although monarch’s role may be largely ceremonial).

Question 7

How do you classify a Federal constitution?

Answer 7

-A state will have a division of power between the central government and regional government.

Question 8

How do you classify a Unitary constitution?

Answer 8

-A state will have a single sovereign legislative body, with power being concentrated at the centre.

Question 9

How do you classify a rigid constitution?

Answer 9

• A state has a constitution which is said to be ‘entrenched.’
• This means that the constitution may be changed only by following a special procedure.
• Most states with written constitutions tend to be rigid.

Question 10

How do you classify a flexible constitution?

Answer 10

-A constitution which is comparatively easy to change because no special procedures are necessary for the constitution to be amended.

Question 11

How do you classify a constitution with a formal separation of powers?

Answer 11

-A state with a clear separation both of functions and personnel between the executive, legislative and judicial branches of state.

Question 12

How do you classify a constitution with an informal separation of powers?

Answer 12

-A state with a significant degree of overlap in terms of functions between the executive, legislative and judicial branches of state.

Question 13

List the classifications of the UK and US constitutions…

Answer 13

UK

• Unwritten
• Monarchical
• Unitary
• Flexible
• Informal separation of powers

US

• Written
• Republican
• Federal
• Rigid
• Formal separation of powers

Question 14

Does the UK have a written or unwritten constitution?

Answer 14

Unwritten constitution - there is no single authoritative written document which sets out how the government should operate + what the rights of individual citizens are. Rather the UK constitution is made up of a variety of different sources.

Question 15

Does the UK have a Monarchical or Republican constitution?

Answer 15

Monarchical constitution. The head of state is the Queen who is unelected + head of state by virtue of her position within the Royal Family. However, in practice the Queen exercises little real power. Most of her powers are, by convention, exercised by the Government on her behalf.

Question 16

Is the UK constitution federal or unitary?

Answer 16

Unitary. The Parliament at Westminster is the supreme (or sovereign) law-making body, + other law-making bodies within the UK (such as the Scottish Parliament or local authorities) derive their law-making powers from powers they have been given by the Westminster Parliament.

• However, some commentators argue that, as a result of devolution, the UK constitution now exhibits some quasi-federal characteristics.
• As further powers are devolved, this argument is likely to take on increasing strength.

Question 17

Is the UK constitution flexible or inflexible?

Answer 17

• Flexible.
• As a result from unwritten.
• Although from a political point of view it may be difficult to amend the constitution, legally the constitution may be changed quite easily because there are no lengthy or complex procedures to follow.

Question 18

Does the UK constitution have a formal or informal separation of powers?

Answer 18

• Largely informal.
• Although it is possible to identify the executive, legislative + judicial branches of state, there is no formal mechanism by which these are kept separate, + there is a degree of overlap between them both in terms of function and personnel.
• There is little formal separation of powers under the UK constitution because there is no written constitution to strictly separate the membership and functions of each branch of state.

Question 19

Describe the US constitution..

Answer 19

• Written = which contains rules on how the government is to operate, + a bill of rights which details the rights which ordinary citizens enjoy.
• Republican = there is an elected president as head of state as opposed to an unelected monarch.
• Federal = power split between the national government in washington + the various individual states.
• Rigid (or ‘entrenched’) = largely as a result of being written. In particular, it may be altered only by following a special procedure.
• Formal separation of powers= No overlap between functions or personnel between executive (president), legislature (congress) + judiciary (supreme court).

Question 20

What are the 3 core principles on which the UK constitution is based?

Answer 20

• the rule of law
• the separation of powers
• the supremacy of parliament

Question 21

Which elements make up ‘the rule of law’?

Answer 21

• There should be no arbitrary exercise of power by the state or government - all actions of the state/government must be permitted by law.
• Laws should be made properly, following a set procedure.
• Laws should be clear - laws should be set out clearly + accessibly, and a citizen should be punished only for a clearly defined breach of the law.
• Laws should be certain - laws should not operate retrospectively + a citizen should not be punished for an act that was not a crime at the time he carried out that act.
• There should be equality before the law - all citizens should have equal access to the legal process for the redress of grievances + the law should not provide special exemptions or ‘get-outs’ for government officials.
• The judiciary should be independent and impartial - the courts should be sufficiently independent from the legislature and the executive so that judges can uphold the law without fear of repercussions from the other branches of state.

Question 22

What political philosopher described the separation of powers?

Answer 22

Charles de Montesquieu, french political philosopher writing in the 18th century.

Question 23

What did Charles de Montesquieu warn of (Regarding the separation of powers?

Answer 23

‘When the legislative and executive powers are united in the same person, or in the same body … there can be no liberty … Again, there is no liberty if the power of judgin is not separated from the legislative and the executive.’ (De l’Esprit des Lois, 1748)

-In essence: No liberty if branches of state are not separate in terms of their functions + personnel.

Question 24

What three branches of state did Montesquieu identify and why must they be kept separate?

Answer 24

a) the legislature (or parliament) - the body that makes the law.
b) the executive (or government) - the body that implements the law.
c) the judiciary (or courts) - the body that resolves disputes about the law.

-They must be kept separate (in terms of functions and personnel) to prevent arbitrary or oppressive government.

Question 25

Is it realistic for each branch of state to be kept completely separate from the others? (uk)

Answer 25

• it is unrealistic so most constitutions have therefore developed the concept of ‘checks and balances.’
• The idea behind this is that each branch of state is kept in check by powers given to the other branches, so that no one branch of state may exert an excessive amount of power or influence.

Question 26

Within the UK constitution, which persons or bodies make up the executive branch of state?

Answer 26

-The Queen, the Prime Minister + other government ministers, the civil service + the members of the police + armed forces.

Question 27

Within the UK constitution, which persons or bodies make up the legislative branch of state?

Answer 27

-The Queen, the House of Lords and the House of Commons.

Question 28

Within the UK constitution, which persons or bodies make up the judicial branch of state?

Answer 28

-The Queen, all legally-qualified judges, and magistrates (non-legally qualified members of the public who deal with some criminal matters).

Question 29

What is parliamentary supremacy?

Answer 29

• A common law doctrine accepted by the judiciary, under which the courts acknowledge that legislation enacted by Parliament takes precedence over the common law.
• Westminster Parliament is the supreme law-making body.
• The doctrine of parliamentary supremacy/sovereignty is central to an understanding of how the UK constitution operates.

Question 30

Which professor famously defined Parliamentary supremacy?

Answer 30

Professor AV Dicey

Question 31

How does Professor AV Dicey define Parliamentary Supremacy?

Answer 31

‘The principle of parliamentary sovereignty means neither more nor less than this: namely, that Parliament… has , under the English constitution, the right to make/unmake any law whatever; and, further, that no person/body is recognised by the law… as having a right to override or set aside the legislation of Parliament. (An Introduction to the Study of the Law of the Constitution, 1885)

In essence:
1) Parliament can pass whatever legislation it likes, thus it can introduce/repeal any law as it sees fit. (often -quoted example, Parliament could, if it wished, ban smoking on the streets of Paris).

2) No other person or body can change/repeal legislation which Parliament has enacted. The courts must uphold legislation passed by Parliament + cannot declare legislation to be unconstitutional. (contrast with USA, where Supreme court can strike down an Act of Congress as being unconstitutional).

Question 32

What is a helpful analogy when thinking of the UK’s unwritten constitution?

Answer 32

A jigsaw - it is made up of a variety of different parts + only when those parts are pieced together can the constitution as a whole be understood.

Question 33

What are the 4 principal sources of the UK constitution?

Answer 33

• Acts of Parliament
• Case law
• the Royal Prerogative
• Constitutional conventions

Question 34

Name some acts of Parliament of constitutional importance…

Answer 34

• Magna Carta 1215
• Bill of Rights 1689
• Act of Settlement 1701
• Acts of Union 1706-07
• Parliament Acts 1911 and 1949
• European Communities Act 1972
• Police and Criminal Evidence Act 1984
• Public Order Act 1986
• Human Rights Act 1998
• Acts of devolution (eg. Scotland Act 1998)
• Constitutional Reform Act 2005

Question 35

What is the Magna Carta 1215?

Answer 35

• has symbolic value as first assertion of the limits on the powers of the monarch + rights of individuals.
• was extracted from King John by his feudal lords + guaranteed certain rights to ‘freemen of the realm’, including trial by jury.
• Embodies the principle that government must be conducted according to the law + with the consent of the governed.
• Established the principle that no man is above the law + compelled King John to renounce certain rights, respect specified legal procedures + accept that his will could also be bound by the law.
• Also introduced the right to protection from unlawful imprisonment.

Question 36

What is the Bill of Rights 1689?

Answer 36

• This imposed limitations on the powers of the monarch + its relationship with Parliament.
• Removed the monarch’s power to arbitrarily suspend acts of Parliament + impose taxation without Parliament’s consent.
• Also provided that Parliament should meet on a regular basis.
• Elections to parliament should be free from interference by the monarch.
• ‘freedom of speech and debates in proceedings in Parliament ought not to be impeached or questioned in any court or place out of parliament.’

Question 37

What is the Act of Settlement 1701?

Answer 37

• This altered the rules of succession (by prohibiting Catholics from succeeding to the throne + giving precedence to male heirs)
• Established the constitutional independence of the judiciary (by providing security of tenure for senior judges).
• However, the succession to the Crown Act 2013 will remove the bar on the monarch marrying a Catholic and end succession to the crown based on gender; it will come into force when all the other 15 Commonwealth countries which have the Queen as head of state have made their own domestic arrangements to the same effect.

Question 38

What are the Acts of Union 1706-07?

Answer 38

• These united England + Scotland under a single Parliament of Great Britain (the parliament at Westminster).
• Also contained provisions to preserve the separate Scottish church and legal system.

Question 39

What are the Parliament Acts 1911 and 1949?

Answer 39

• Altered the relationship between the House of Lords and the House of Commons.
• Ensured the will of the elected House of Commons would prevail over that of the unelected House of Lords by enabling legislation to be enacted without the consent of the House of Lords.

Question 40

What is the European Communities Act 1972?

Answer 40

• Brought the UK into the (now) EU and incorporated EU law and EU legal systems into our domestic law,
• The treaty establishing the European Community has been amended and renamed the Treaty on the Functioning of the European Union (TFEU).

Question 41

What is the Police and Criminal Evidence Act 1984?

Answer 41

• relevant to civil liberties.
• It provides the police with extensive powers of arrest, search + detention, but also contains important procedural safeguards to ensure that the police do not abuse such powers.

Question 42

What is the Public Order Act 1986?

Answer 42

• relevant to civil liberties.

- Allows limitations to be placed on the rights of citizens to hold marches + meetings in public places.

Question 43

What is the Human Rights Act 1998?

Answer 43

• Incorporates the European Convention on Human Rights into our domestic law.
• Marks a fundamental change in the protection of human rights by allowing citizens to raise alleged breaches of their human rights before domestic courts.

Question 44

What are the Acts of devolution (eg. Scotland Act 1998)?

Answer 44

• Created a devolved system of government in various parts of the UK.
• Acts establishing a Scottish Parliament + assemblies in Wales and Northern Ireland have decentralised the process of government and given greater autonomy to these parts of the UK.

Question 45

What is the Constitutional Reform Act 2005?

Answer 45

• Reformed the office of Lord Chancellor, transferring the Lord Chancellor’s powers as head of the judiciary to the Lord Chief Justice and permitting the House of Lords to elect its own Speaker.
• Also provided for the creation of a Supreme Court (to replace the Appellate Committee of the House of Lords)
• Created a new body (the Judicial Appointments Commission) to oversee the appointment of judges.

Question 46

Did the enactment of the Acts of great constitutional importance (Eg. Magna carta 1215, Constitutional Reform Act 2005 etc.) require a special procedure?

Answer 46

-No, each act was enacted by Parliament in the same way as any other Act of Parliament.

Question 47

Are the Acts of great constitutional importance (Eg. Magna carta 1215, Constitutional Reform Act 2005 etc.) ‘entrenched’?

Answer 47

• No, each act may be repealed by an ordinary Act of Parliament, just as with any other statute.
• No special procedure is required for its repeal
• However, as you will see later, some recent Acts of Parliament, such as the Scotland Act 2016, contain provisions stating that Parliament will not legislate to achieve certain aims without first holding a referendum on the relevant issue.

Question 48

Is it easy for Parliament to make significant changes to the constitution?

Answer 48

• It is easy, in strictly legal terms, as a result of having an unwritten constitution.
• In the absence of a written constitution setting out a ‘higher’ form of law against which all other legislation may be judged ( + also as a result of development of doctrine of parliamentary supremacy), Parliament may enact such legislation as it wishes + courts cannot strike down such legislation as being unconstitutional.

-Factors which limit Parliament’s ability to change the constitution tend to be more political, economic or social as opposed to strictly legal.

Question 49

What is residual freedom?

Answer 49

• principle developed through the common law.
• A citizen is free to do/say whatever he wishes unless the law(primarily expressed through acts of parliament) clearly states that such an action or statement is prohibited.

Question 50

‘Actions of the state must have legal authority’ - how did this rule develop?

Answer 50

• established through the common law
• actions taken by state officials (such as police officers) must have a legal basis if they are to be lawful.
• (links to principle of rule of law)

Question 51

Entick v Carrington (1765) 19 St Tr 1030 - Describe this case and what principle it established…

Answer 51

• The Secretary of State issued a general warrant for the arrest + search of Entick, who had allegedly been publishing ‘seditious material.’
• The court found that there was no legal authority that enabled the Secretary of State to issue such general warrants, and that any authority for the lawful exercise of power by the state had to be found ‘in the [law] books. If it is not to be found there, it is not law.’
• The case established the principle that state officials could not act in an arbitrary manner and that the exercisse of power by the state had to have clear legal authority.
• Further the law did not provide state officials with any form of exemption or ‘get out’ from legal accountability for their actions.

Question 52

What constitutionally important principle did the ‘Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63’ set out?

Answer 52

• Legal disputes should be resolved by the judiciary. (the rule of law)
• This case concerned a dispute over land which the King sought to settle by making a ruling.
• The court held that the monarch had no power to decide legal matters by way of arbitrary rulings, and that legal disputes should be properly resolved by the courts.

-Chief Justice Coke ruled that:
‘…the king in his own person cannot judge any case…this ought to be determined in some Court of Justice…so that the court gives the judgement.’

Question 53

What is Habeus corpus?

Answer 53

• Developed originally through the common law.
• Now it is strengthened by statute,
• The remedy of habeus corpus - whereby an individual who has been detained by the state has the right to have the legality of that detention tested before a court.

Question 54

Why is the ‘Belmarsh case’ (A and others v Secretary of State for the Home Department [2005] 2 AC 68) of constitutional importance?

Answer 54

• Involved a challenge to provisions in the Anti-terroism, Crime and Security Act 2001 which permitted foreign natonals suspected of being involved in terrorist activities (but against who there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.
• The House of Lords (now the Supreme Court) held that such detention was unlawful + a breach of the European Convention on Human Rights (ECHR).
• The right to liberty is also contained in Article 5 of the ECHR, which now forms part of UK law following the enactment of the Human Rights Act 1998.

Question 55

How important is the Right to a fair hearing and where is it referred to?

Answer 55

• Through the common law, the courts have repeatedly stressed the importance of the right to a fair hearing as a fundamental constitutional principle + also an important part of the rule of law.
• The right to a fair trial is also contained in Article 6 of the ECHR, which now forms part of UK law following the enactment of the Human Rights Act 1998.

Question 56

What is the ‘Enrolled Act’ rule and in which cases did it develop?

Answer 56

• the common law ‘enrolled act’ rule is at the centre of parliamentary supremacy (common law doctrine accepted by the judiciary).
• The rule states that once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void.
• Edinburgh & Dalkeith Railway Co v Wauchope (1842) 8 C1 & F 710
• Pickin v British Railways Board [1974] AC 765

Question 57

What is judicial review?

Answer 57

-In addition to the common law being the source of several important constitutional principles, the courts have also developed the process of Judicial review.

-A mechanism which enables the courts/the role played by the high court,
to ensure that the Government + other public bodies exercise the powers which they have been granted in the proper way + so do not breach the rule of law/act within the powers they have been granted by Parliament.

-St Helen’s Borough Council v Manchester Primary Care Trust [2008] EWCA Civ 931 = Mary LJ defined the function of the court in jr proceedings as being to review decisions of statutory and other public authorities, ‘to see that they are lawful, rational and reached by a fair process.’

Question 58

Why is judicial review constitutionally important?

Answer 58

The UK does not have a written constitution creating a ‘higher authority’ against which individual pieces of legislation may be measured.

• As a consequence of this, and also because of the doctrine of parliamentary supremacy, courts in the UK do not have the power to review the constitutionality of legislation.
• The courts do, however, have the ability to review the way in which public bodies exercise the powers which Parliament has conferred upon them.

-Judicial review is important because it enables the courts to hold the executive (government) accountable for its actions. This prevents the government acting in an arbitrary, illegal or irrational manner, and ensures that decisions are taken in a fair + unbiased way.

Question 59

Why is the case - R v Secretary of State for Transport, ex p Factortame Ltd (No 1) [1990] AC 85 and (No 2) [1991] 1 AC 603, Constitutionally significant?

Answer 59

• The judiciary made a decision of constitutional importance when interpreting statute law, in relation to the European Communities Act 1972.
• In this case, the House of Lords effectively suspended the operation of an Act of Parliament where the act was in conflict with EU law.

Question 60

What did Lord Justice Laws obiter comments in Thoburn v Sunderland City Council [2002] 4 All ER 156, suggest?

Answer 60

-Suggested there is a hierarchy of acts of parliament, making a distinction between ‘ordinary’ statutes and ‘constitutional’ statutes.

Question 61

Is Case law flexible?

Answer 61

• Through the development of the common law, the growth of jr + their interpretation of statutes, the judiciary have been able to change + shape the development of the constitution.
• As with statutes enacted by Parliament, case law is ‘flexible’. Subject to the doctrine of judicial precedent, judges exercise a measure of discretion in deciding cases before them , + case law can reflect changing social, economic and moral standards in society.
• Case law can also be flexible in another way, namely that if Parliament or the government takes issue with case law developing the law in a particular direction, an act of parliament can be passed which will override any pre-existing case law.

Question 62

Other than various statutes, where does the UK Government also derive some power from?

Answer 62

• The Royal Prerogative
• The UK government derives most of its powers from various statutes in which Parliament has given government Ministers authority to make decisions or take action in a particular area but also some from the royal prerogative.

Question 63

How did Dicey define the Royal Prerogative?

Answer 63

‘…the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown..Every act which the government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.’

Question 64

Where are the prerogative powers derived from and what do they enable parliament to do?

Answer 64

• From the common law + are exercised by (or in the name of) the monarch.
• Essentially what remains of the absolute powers which at one time were exercised by the monarch + which have not been removed by Parliament.

Question 65

Give examples of when parliament has removed an aspect of the royal prerogative?

Answer 65

-The Crown Proceedings Act 1947. This act abolished the immunity which the crown previously had in respect of claims against it both in tort + contract.

• A more recent example, the Fixed-term Parliaments Act 2011. This act provides for fixed days for polls for parliamentary general elections, + these will generally now be held every 5yrs.
• It removes the power the Queen formerly exercised under the Royal Prerogative to dissolve Parliament at a time of her choosing (by convention, the Queen would always dissolve Parliament when requested to do so by the Prime Minister).
• However, the manifesto of the current government pledges to repeal the fixed-term parliaments act.

Question 66

What does the modern extent of the royal prerogative cover?

Answer 66

A) Foreign affairs

• declarations of war + the deployment of armed forces overseas.
• making treaties
• the recognition of foreign states.

B) Domestic affairs

• the summoning of parliament
• the appointment + dismissal of the Prime Minister (+ other government ministers)
• the giving of royal assent to bills
• defence of the realm (ie. the deployment of armed forces within the UK)
• the exercise of the prerogatives of pardon + mercy
• granting public honours.

Question 67

Are most of the prerogative powers exercised by the Queen?

Answer 67

-No, although the monarch is legally responsible for the exercise of the prerogative powers, most of these powers are by convention exercised by the Prime Minister + other government ministers on the monarch’s behalf.

Question 68

What are constitutional conventions?

Answer 68

-important ‘non-legal’ source of the constitution.

Question 69

How did Marshall and Moodie define constitutional conventions?

Answer 69

‘…rules of constitutional behaviour which are considered to be binding upon those who operate the constitution but which are not enforced by the law courts… nor by the presiding officers in the House of Commons…’

(Marshall and Moodie, Some Problems of the Constitution)

Broken down:
a)’rules of constitutional behaviour’ -ie how those who perform a role within the constitution should behave.

b) ‘considered to be binding’ -ie there should be no deviation from these rules.
c) ‘not enforced’ - ie the rules have no legal basis + so will not be enforced by any judicial body.

Question 70

Are constitutional conventions flexible?

Answer 70

• yes
• ‘non-legal,’ do not require any particular step/procedure for their creation.
• If a constitutional convention becomes obsolete, it can be dispensed without formal steps being taken.

Question 71

What is the constitutional convention for this legal rule:

Royal Assent is requires for a Bill to become a valid Act of Parliament. The monarch may refuse to give Royal Assent.

Answer 71

Convention= The monarch, on the advice of the Prime Minister always assents to a Bill which has passed through parliament.

Question 72

Legal rule = The monarch constitutes part of the executive branch of government, but cannot make laws/raise taxes except through an Act of Parliament.
What is the convention?

Answer 72

Convention= The monarch acts only on the advice of the Prime Minister + other Ministers, + in practice most decisions are taken by the Prime Minister + other ministers themselves.

• Executive powers are exercised through Ministers who are collectively + individually responsible to parliament.
• Legislation involving taxation + public expenditure is controlled by the House of Commons.

Question 73

Legal rule=The government is the ‘Queen’s government,’ and she can therefore appoint and dismiss its members as she chooses.
What is the constitutional convention?

Answer 73

Convention= The monarch must appoint as Prime Minister the person who can command the support of the majority of the House of Commons (nowadays usually an elected party leader successful in a general election).
-The monarch must appoint + dismiss ministers on the advice of the prime minister, all of whom must be members of parliament + most of whom will be members of the House of Commons.

Question 74

Constitutional convention- Does the monarch play an active role in government matters?

Answer 74

-Monarch plays no active role in government matters (monarchs legal powers are exercised on her behalf by the elected government).

Question 75

Constitutional convention- Does the monarch typically refuse royal assent to bills?

Answer 75

-The monarch, acting on the advice of the Prime Minister will NOT refuse royal assent to a bill which has been passed by the House of C and House of L.
If advised by the Prime Minister to assent a bill, the monarch will always do so (last time a monarch refused royal assent was in 1707).

Question 76

Constitutional convention- How does the monarch decide who to appoint as Prime Minister?

Answer 76

-The monarch will appoint as Prime M the person best able to command the confidence of the House of Commons.

Question 77

Constitutional convention- Are government ministers and the Prime Minister members of the House of Lords and/or the House of Commons?

Answer 77

-Government ministers will be members either of the House of C or House of L + the Prime Minister(+ most senior government ministers) should be a member of the democratically-elected House of C rather than unelected House of L. It’s now rare for a peer (other than the leader of the House of L) to sit in the cabinet.

Question 78

Constitutional convention- How does the monarch decide to appoint/dismiss government ministers?

Answer 78

-The monarch will appoint + dismiss government ministers on the advice of the Prime Minister.

Question 79

Constitutional convention - What are the elements of individual ministerial responsibility?

Answer 79

• Government ministers are responsible to Parliament both for the running + proper administration of their respective departments, + also for their personal conduct.
• There must be no conflict of interest between a Minister’s public duties and his/her private interests.
• A minister who breaches this convention should resign.
• eg. In 1982, the foreign secretary, Lord Carrington, resigned following criticsim of the administrative failings of his department, which had failed to foresee the Argentine invasion of the Falkland Islands.
• Ministerial resignations owing to departmental failings are, however, comparatively rare. In contrast, resignations relating to a minister’s personal conduct are more frequent.
• Eg. 2017, Priti Patel resigned as International Development Secretary after unauthorised meetings with Israeli officials.

Question 80

Constitutional convention - What are the aspects of collective cabinet (or ministerial responsibility?

Answer 80

• The cabinet is collectively responsible to Parliament for the actions of the Government as a whole, and the government must retain the confidence of the House of Commons. A goverment defeated on a vote of ‘confidence’ in the House of Commons must resign (as did the Labour Goverment when it lost such a vote in 1979).
• The Cabinet must be united in public in supoort of Government policy, + so a Cabinet minister must resign if he/she wishes to speak out in public against such policy (as did Robin Cook in 2003, when he wished to voice his opposition to the war in Iraq, + Philip Hammond in 2019 at the incoming Prime Minister’s willingness to leave the EU without a deal). The same principle applies to ministers who are not members of the Cabinet. Accordingly Baroness Warsi, a senior Foreign Office Minister resigned in 2014 from the Government in protest at its policy on Gaza.
• Cabinet discussions must remain secret.

Question 81

Constitutional convention- What does the ‘Salisbury Convention’ state in relation to House of Lords power to reject legislation regarding an important manifesto commitment of government?

Answer 81

-Unelected House of Lords will not reject legislation that gives effect to an important manifesto commitment of the democratically-elected Government (the ‘Salisbury Convention’).

Question 82

Constitutional convention- the ‘Sewel convention’?

Answer 82

-The UK Parliament will only legislate on a matter which has been devolved to the Scottish Parliament if the Scottish Parliament has given its consent (the ‘Sewel Convention’). Note that this convention was inserted into s 28 of the Scotland Act 1998 by the the Scotland Act 2016.

Question 83

Constitutional convention - Do members of the judiciary play an active part in political life?

Answer 83

-NO

Question 84

Constitutional convention - Can ministers and members of Parliament criticise in public, individual members of the judiciary?

Answer 84

-NO

Question 85

What are the reasons for the conventions developing?

Answer 85

• To limit the wide legal powers of the monarch without the need for major constitutional upheaval.
• To enable the constitution and the government to operate effectively + flexibly.
• To ensure that the government is accountable to parliament for its actions.
• To maintain the separation of powers between the different branches of state.

Question 86

How do the constitutional conventions limit the wide legal powers of the monarch without the need for major constitutional upheaval?

Answer 86

-It is unacceptable in a modern democracy for an unelected monarch to have wide powers, so by convention these powers are now exercised by ministers on the monarch’s behalf.

-Thus: monarch always gives royal assent to a bill if advised to do so by Prime M.
Monarch must appoint as Prime M the person who commands the confidence of the House of C.
Monarch appoints other government ministers on the advice of the Prime M.

-In similar way, convention that the House of L will not reject legislation giving effect to an important manifesto commitment of the democratically-elected government ensures that House of C takes precedence over the non-elected House of L.

Question 87

How do the constitutional conventions enable the constitution + the government to operate effectively and flexibly?

Answer 87

• There would be a constitutional crisis were the monarch ever to refuse Royal Assent to a bill that had passed the House of C + L.
• There would be legislative deadlock if the monarch failed to appoint as Prime M someone who could command confidence of the House of C.
• would also be legislative deadlock if the government failed to resign were it to lose a vote of confidence in the House of C.

Question 88

How do the constitutional conventions ensure that the government is accountable to parliament for its actions?

Answer 88

• Individual ministerial responsibility ensures that government ministers are held to account for their actions + do not abuse their powers (ministers are not legally accountable to parliament).
• Collective cabinet responsibility ensures that the government as a whole must retain the confidence of parliament for its actions ( again, no direct legal accountability to parliament).

Question 89

How do the constitutional conventions maintain the separation of powers between the different branches of state?

Answer 89

• The convention that members of the judiciary do not play an active role in politics helps to preserve judicial independence.
• The convention that ministers + MPs do not criticise individual members of the judiciary also helps to preserve this.

Question 90

Madzimbamuto v Lardner-Burke [1969] 1 AC 645:

What approach was taken by the judiciary towards constitutional conventions?

Answer 90

• 1965 = White minority government of Southern Rhodesia issued a unilateral declaration of independence from Britain.
• However, UK parliament passed the Southern Rhodesia Act 1965, which declared that Southern Rhodesia remained part of the UK’s dominion territories.
• Validity of this act was challenged on basis that there was an estalished convention that the UK parliament would not legislate for Southern Rhodesia (now zimbabwe) without the consent of the rhodesian government.
• The privy council refused to enforce the convention + held that parliament could pass legislation which ran contrary to an existing convention.
• Lord Reid’s judgement: ‘Their Lordships in declaring the law are not concerned with [conventions]… They are concerned only with the legal powers of Parliament.’

Question 91

A-G v Jonathon Cape [1976] QB 752: What approach was taken by the judiciary towards constitutional conventions?

Answer 91

• The attorney-general sought an injunction to restrain the publication of Richard Crossman’s book, ‘The Diaries of a Cabinet Minister.’
• Crossman had been in thye cabinet from 1964 to 1970, but publication did not come within the provisions of the Official Secrets Acts.
• The A-G sought, therefore, to rely on the constitutional convention of collective Cabinet responsibility as one of the principal grounds on which to restrain publication.
• He argued that Crossman’s diaries divulged details of dissent within the cabinet, thereby breaching the convention. Against this, it was argued that the convention imposed no obligation in law + the court could not restrain publication as no issues of national security were involved.
• The equitable doctrine of breach of confidence that a person should not profit from the wrongful publication of information received in confidence was also a powerful reinforcement of the A-G’s arguments.
• The High Court recognised the existence of the convention of collective responsibility which requires cabinet members to keep cabinet discussions secret.
• Court also accepted possibility that the convention of collective responsibility, along with other factors, could impose on ministers a duty of confidence in respect of cabinet discussions.
• While the court would not directly enforce the convention, it could take it into account when deciding whether the information in question was confidential.

-However, as the cabinet meetings concerned had taken place many years previously, it was no longer in the public interest to prevent publication + so the court refused to grant an injunction. Significantly, however, the court indicated that it could have prevented publication had it been in the public interest to do so.

Question 92

What do the cases of Madzimbamuto v Lardner-Burke and A-G v Jonathan Cape, demonstrate about the approach of the judiciary towards constitutional conventions?

Answer 92

• Whilst the courts recognise the existence of constitutional conventions, they are not prepared to enforce such conventions directly, but as the Jonathan Cape case shows, courts will recognise the existence of conventions, + conventions may indirectly give rise to legal obligations which the courts will enforce.
• However, if Parliament passes an act which breaches a convention, the act might be ‘unconstitutional’ but the courts will not refuse to apply it for that reason.

Question 93

What did the Supreme court reaffirm (regarding courts enforcing conventions) in R(Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5?

Answer 93

• The courts cannot enforce conventions.
• The court emphasised that this was because conventions operated in the political sphere alone.
• It also stated that including reference to the Sewel Convention in statute had not turned that convention into a legal rule.
• Thus, despite the fact that triggering article 50 may breach the sewel convention, there would be no legal remedy.

Question 94

What are the arguments FOR codifying (same status as laws) constitutional conventions?

Answer 94

-Promote certainty and clarity.

Question 95

What are the arguments AGAINST codifying (same status as laws) constitutional conventions?

Answer 95

• Any attempt to give constitutional conventions the same force as laws will erode their flexibility.
• Also argued that the use of constitutional conventions is too wide-ranging for them to be codified + that, because conventions are not fixed but rather appear + disappear as circumstance demands, any attempt at codification would require amendment.
• Perhaps the strongest argument against is that they often deal with sensitive political matters, where codification might lead to a constitutional crisis. eg. many constitutional conventions exist to limit the role of the unelected monarch. (you can imagine the constitutional crisis that might arise were an attempt made to impose legal limitations on the powers of the monarch!)
• December 2010 - government published for the first time a cabinet manual setting out the main laws, rules + conventions affecting the conduct + operation of government. However the cabinet manual is not intended to have any legal effect but instead to provide guidance to ministers + officials.

Question 96

What are some other minor sources of the constitution?

Answer 96

• laws and customs (ie internal rules + procedures) of parliament
• various academic writings on the UK constitution.